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26.
It is difficult to say how that principle could be appropriate for most of the offences in Part I of the Schedule to the Corporal Punishment Ordinance quoted earlier.
It may apply in cases of rape or wounding or robbery or indecent assault or affray, but can hardly apply to the possession of arms or offensive weapons or other offences in which the use of violence does not play a necessary part.
27.
If therefore this form of punishment a creature of a less enlightened age, which is brutalising and degrading, and whose imposition is motivated by retribution, whose deterrent
effect is questionable and whose rehabilitative value is
negligible, nevertheless to be retained because the legislature finds itself unable to break its emotional ties with the concept of corporal punishment, then at least we can restrict its use to those circumstances where the use of violence is so cruel, where the age and sex of the victim is a highly significant factor, and where there are circumstances of obvious and special aggravation. Then we may have satisfied the emotional and cultural demands of those who argue for and those who argue against the retention of corporal punishment. I further submit that this suggestion be made the subject of legislation.
28.
I said earlier that I would return to the question of Public Order Ordinance, section 33 i.e. Possession of Offensive Weapons in a Public Place. Corporal punishment is included among the alternative modes of sentence for this offence.
Annex A clearly indicates it is a mode of sentence which has found favour with the Judiciary in relation to this offence. However, as I earlier pointed out, the reason for its popularity is the Judiciary's attitude towards the mandatory penalty provision in this section. When the legislature introduced the mandatory penalty in 1972, it was never intended that magistrates should get round that penalty by imposing sentences such as one stroke of the cane. It was felt that the mandatory prison sentence or the detention in a Detention or Training Centre
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